MUHAMMAD YOUNIS and others vs ESSA JAN and others

ORDER

' MUHAMMAD AK HTAR SHABBIR, J.--- This appeal, by leave of the Court, is directed against the judgment, dated 25-6-2004 'passed by the High Court of Balochistan, Quetta in Civil Revision No,25 of 2004.

2. Brief facts leading to filing of the present appeal are to the effect that the plaintiffs/appellants had filed a suit for declaration, permanent injunction and cancellation of mutation, in the Court of Qazi Kalat against the defendants/respondents, in respect of property situated in Mouza Ghousabad, Tehsil Kalat. It was alleged in the plaint that the property in dispute had been purchased by their forefathers from Major Wali Muhammad about 131 years back through an agreement and since then their forefathers and thereafter they had been cultivating the same being owners in possession thereof; that they had spent a huge amount to bring the said land under cultivation; that they were of the view that the entries in their favour had been incorporated in the Revenue Record but in 1991 they came to know that the entries of the land had been firstly incorporated in the name of Khan Ahmad Yar Khan, Khan of Kalat and thereafter under the Land Reforms Regulation, the said land was transferred in favour of the State. The suit was contested by the defendants/respondents by filing written statements, denying the averments made in the plaint with the prayer for dismissal of the same. From the factual controversies appearing on the pleadings of the parties, the learned trial Court/Qazi, Kalat framed various issues and after recording, appreciating the evidence, pro and contra, of the parties, dismissed the suit vide its judgment and decree dated 30-6-2003. The said judgment and decree had been challenged by the plaintiffs/appellants by filing an appeal before the "Majlis-e-Shoora", Kalat Division at Mastung, which had been dismissed, vide judgment, dated 29-10-2003. The judgments and decrees of both the Courts below had been assailed by the plaintiffs/appellants before the High Court of Balochistan, Quetta through Civil Revision No,25 of 2004, which too met with the same fate, vide the impugned judgment.

3. Learned counsel for the appellants contended that the appellants have produced documentary evidence (Sanad) before the Qazi, to establish the purchase of the land in dispute from Major Wali Muhammad by their forefathers namely, Lal Muhammad and Saleh Muhammad; that this documentary evidence had been further supported by the oral evidence produced by the appellants; that the 30 years old document produced by the appellants before the trial. Court carried the presumption of truth and all the Courts below have illegally ignored the veracity thereof; that the impugned judgment is a result of misreading and non-reading of the evidence.

4. While, on the other hand, the learned counsel for respondents Nos.1 to 9 vehemently opposed the arguments of the learned counsel for the appellants, contending that the document (Sanad) produced by the appellants had not been exhibited and the trial Court as well as the Appellate and Revisional Court have observed that the said document was forged and fabricated; that the suit filed by the appellants was hit by limitation, the respondents were the owners of the land in dispute and that the possession of the same was with them; that the appellants have not been able to establish their title/ownership and possession over the land in dispute; that there are concurrent findings of fact against the appellants which could not be interfered with by this Court.

5. We have heard the arguments of the learned counsel for the parties, perused the record with their assistance. The suit has been filed by the plaintiffs/appellants on the ground that their forefathers had purchased the property from one Major Wali Muhammad about 131 years ago through a Sanad/writing, where after they and then the appellants had been cultivating the same without any interference. The document of purchase was shown to have been executed in presence of the marginal witnesses namely, Abdul Ghani son of Abdul Aleem, Hussain Bakhsh son of Pir Bakhsh and Muhammad son of Abdul Rahim but neither any of them had signed the said document nor it was attested by any competent authority, so much so, the place of residence of the vendor, Major Wall Muhammad had also not been disclosed in the same. In the year 1291 Hijra, Khan of Kalat was the ruler of the area, the property was not in ownership of any private person and it is not clear from the record as to how Major Wali Muhammad became owner of the property in dispute. The most important aspect of the case is that this old document has not been placed on record and exhibited in evidence. A document which is not a part of the judicial record, its judicial notice cannot be taken. The Courts below i,e, the trial Court as well as the Appellate Court had not taken into consideration the said Sanad/ document while deciding the suit against the present appellants because they have not been able to produce sufficient convincing evidence to establish their assertions made in the plaint, and the said findings have been affirmed by the High Court, vide the impugned judgment. The appellants have failed to prove their ownership and title over the land in dispute. It has never been entered in the Revenue Record in favour of the appellants. The appellants have admitted in their plaint that in the record property is entered in favour of Khan of Kalat, who is forefather of the defendants/respondents. It is thus, established that the respondents are owners of the property. The concurrent findings of fact rendered by the three Courts below against the appellants cannot be interfered with by this Court at this stage. Even otherwise, this Court would not interfere with the concurrent findings of fact recorded by the lower Courts as laid down in the cases of Muhammad Sharif v. Mst. Fajhi alias Phaji Begum through Legal Heirs and another 1998 SCM R 2485, Muhammad Azam v. Inayat Shah 1998 SCM R 1356 and Mazhar Iqbal v. D.C.O. Toba Tek Singh and others 2008 SCM R 863.The appellants have also not pointed out any illegality, infirmity, jurisdictional defect, misreading or non-reading of evidence in the impugned judgment, warranting interference by this Court.

6. As to the argument of the learned counsel for the appellants, that the provisions of the Land Reforms Regulation, 1972 had been declared against the Injunctions of Qur'an and Sunnah, vide judgment of the Shariat Appellate Bench of this Court, in case of Qazal Bash Waqf and others v.

Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99, it would be suffice to observe that as observed by the Court, the decision in the said case would be effective w,e,f, 23-3-1990.

Even otherwise, the law declared by Courts is never retrospectively effective and it only takes effect after the announcement of the judgment or the date notified by the Court.

7. For the foregoing reasons, we do not find any substance in this appeal which is dismissed. There shall be no order as to costs.